Forced marriage as a crime against humanity

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Forced marriage as a crime against humanity

Candidate number: 553

Submission deadline: 25 November 2016 Number of words: 17 614

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Abbreviations

AFRC Armed Forces Revolutionary Council

AJ Appeals Judgment

CDF Civil Defence Forces

CEDAW Convention on the Elimination of all Forms of Discrimination Against Women 1979

cf. compare (confer)

e.g. for example (exempli gratia)

ECCC Extraordinary Chambers in the Courts of Cambodia ed./eds. editor(s)

et al. and others (et alii) i.e. that is (id est)

Ibid. in the same place (ibidem) ICC International Criminal Court

ICCPR International Covenant on Civil and Political Rights 1966 ICJ International Court of Justice

ICL International criminal law

ICTR International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens responsible for genocide and other such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994. Adopted by UN Secu- rity Council res. S/RES/955.

ICTY International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991. Adopted by UN Security Council res.

S/RES/827.

IMT International Military Tribunal at Nuremberg LRA Lord’s Resistance Army

NGO Non-Governmental Organization OTP Office of the Prosecutor

p. page

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ii para./paras. paragraph(s)

per se by itself

RPE Rules of Procedure and Evidence RUF Revolutionary United Front SCSL Special Court for Sierra Leone

TJ Trial Judgment

UDHR Universal Declaration of Human Rights 1948 UN United Nations

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1 Introduction

1.1 Introductory remarks

Sexual and gender-based crimes directed towards women have existed since the dawn of man.¹ Crimes against women can serve multiple purposes in the context of war; both as “priz- es or incentives to fighting men”.² It has been questioned whether “women have been among the ‘forgotten’ victims of the laws of both international and non-international armed conflict”.³ In answering this, Chinkin acknowledges that while the silence has been broken and steps towards recognition have been made, women remain largely forgotten.⁴ In the past two decades, we have seen an increased focus on sexual and gender-based violence against women; legal scholars and Non-Governmental Organizations (NGOs) have put such acts on the agenda, and increasingly prosecutors at international criminal tribunals have included sexual and gender-based crimes in their indictments. Furthermore, the role international criminal tribunals have played in developing the law cannot be understated.⁵ One of the newest of such crimes, recognized and developed in international jurisprudence, is “forced marriage”⁶ as a crime against humanity.⁷

The Report of the UN Secretary-General defined forced marriage as “lacking the free and valid consent of at least one of the parties”.⁸ Thus, the key element in forced marriage, one could argue, is the absence of free and full consent. Numerous international human rights in- struments and treaties explicitly prohibit forced marriage, see for example Article 16 of the Universal Declaration of Human Rights (UDHR), Article 23 in the International Covenant on Civil and Political Rights (ICCPR), Article 16 the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), and Article 1(1) in the Convention on Consent to Marriage, Minimum age for Marriage and Registration for Marriage (CCM). However,

1 Askin (2011) p. 84.

2 Eboe-Osuji (2012) p. 221.

3 Chinkin (1999) p. 23.

4 Ibid. p. 40.

5 Frulli (2008) p. 1035.

6 While the author of this thesis (hereinafter, «the author») acknowledges that “forced marriage” is not a term of positive law, e.g. not codified in international criminal tribunals’ statues, subsequent sections of this thesis will not use quotation marks when referring to the crime - for reasons of readability.

7 Christensen (2015) p. 1826.

8 UN General Assembly, A/61/122/Add.1, para. 122.

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breaches of human rights do not automatically constitute a breach of international criminal law (hereinafter, ICL) and therefore a criminal offence.⁹ This is because human rights primarily put obligations upon the ratifying State - i.e. the State is obliged to ensure the fulfil- ment of human rights obligations.¹⁰

Forced marriage is not only an issue of the past; it is prevalent in conflicts around the world today - for example in Nigeria by the Boko Haram¹¹ and in areas under control of ISIS.¹² De- spite forced marriage being a prevalent practice around the world, it has not been explicitly criminalized in any of the international criminal tribunals’ statutes. When trapped in forced marriages, women will often experience “unimaginable suffering as their most fundamental human rights (…) [are] stripped away through rape, violence, torture, forced pregnancy, and forced labour”.¹³ Other crimes have been reported to accompany forced marriage, including sexual torture, sexual mutilations, forced abortions and being drugged.¹⁴ These acts show that forced marriage is a multi-layered crime.¹⁵ It has been argued that although forced marriage causes immense suffering, it is an “overlooked crime”.¹⁶

1.2 Research question, aim and delimitations

This thesis sets out to answer the following research question: Has international jurisprudence come to a point of recognition of forced marriage as a separate crime against humanity and if so, is it viable?

The thesis will begin with an historical account, by analysing how forced marriage has been, and is being, dealt with by international criminal tribunals: Parts 2.1-2.4 examine cases wherein forced marriage has been indicted as a separate crime, analysing for each case how the crime was defined and the resulting ratio decidendi. Part 2.5.1 contains a comparative

9 Frulli (2008) p. 1039.

10 Cryer et al. (2014) p. 13.

11 https://www.washingtonpost.com/world/africa/they-were-freed-from-boko-harams-rape-camps-but-their- nightmare-isnt-over/2016/04/03/dbf2aab0-e54f-11e5-a9ce-681055c7a05f_story.html (last accessed 7 No- vember 2016).

12 https://www.hrw.org/news/2015/04/14/iraq-isis-escapees-describe-systematic-rape (last accessed 7 Novem- ber 2016).

13 Scharf and Mattler (2005) p. 24.

14 Human Rights Watch (2003) p. 33 and 41.

15 Frulli (2008) p. 1036.

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summary of how forced marriage has been recognized hitherto in international case law, which lays the framework for the discussion that follows in Part 2.5.2. The discussion in Part 2.5.2 seeks to put the analysis in Parts 2.2.1 - 2.5.1 in a broader context by assessing the extent to which there is agreement in case law about the definition and elements of the crime forced marriage, as well as whether a judicial precedent has been set in international criminal law.

Part 3 is devoted to a theoretical discussion of forced marriage as a separate crime against humanity. General problems of definition, in addition to possible legal categorizations of forced marriage, will be explored. Part 4 will question the legality of forced marriage as a separate crime.

Part 5 discussed the future of forced marriage as a separate crime against humanity. The approach will be teleological, assessing the viability of the crime of forced marriage in light of the general objectives of ICL.

The aim of this thesis is to further the discussion on forced marriage, and at the same time to put it in a broader context, assessing the viability of the crime as a crime of ICL. Much has been written in the legal field on how forced marriage was dealt with by the Special Court for Sierra Leone (SCSL).¹⁷ What has been lacking, however, is an up-to-date analysis of the case law of the Extraordinary Chambers for the Courts of Cambodia (ECCC) and the International Criminal Court (ICC) that deals with forced marriage. This thesis intends to contribute to fill- ing that gap.

The scope of this thesis will be limited in a number of ways. Firstly, it will only deal with the occurrence of forced marriage during armed conflicts, not in peacetime. Secondly, although the author recognizes the value of a comparative analysis with domestic criminal law, it will, due to limited space, focus on the sphere of international criminal law.¹⁸ Thirdly, the thesis focuses solely upon forced marriage as a crime against humanity. It has been argued that

17 As examples, see da Silva (2011), Frulli (2008), Goodfellow (2011) and Oosterveld (2007) (2011a and b) (2012) (2014), Thompson (2014).

18 For an overview of countries which have criminalized forced marriage in domestic law, see the Commission of Women of ECOSOC, E/CN.6/2008/4 p. 7-10.

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forced marriage could constitute a crime of genocide.¹⁹ That being said, international criminal tribunals have dealt with forced marriage exclusively as a crime against humanity and the author has opted to follow that categorization. Finally, the distinction between forced marriage and arranged marriages will not be discussed in detail. This is due to space limitations, and also because the distinction between forced marriage and sexual slavery will highlight general difficulties in separating forced marriage from other crimes against humanity.

1.3 Methodology

In being part of the international legal order, ICL “originates from the same legal sources as international law”.²⁰ It follows from Article 38(1) of the Statute for the International Court of Justice²¹ that these sources include international conventions, international custom and general principles of law as primary means. Subsidiary sources are judicial decisions and teach- ings from highly qualified scholars. The ICC has listed its own sources of law, in Article 21(1) of the Rome Statute.²²

One methodical challenge this thesis faces is reflected in its primary focus, namely forced marriage. Forced marriage is a new international crime which has not been codified in any of the criminal tribunals’ statutes; rather, it has evolved through jurisprudence. Additionally, few cases deal with forced marriage. Thus, subsidiary legal sources will be the main provider of the arguments in the analysis. Another challenge is that ICL is a relatively new discipline of international law, often characterized by fragmentation and inconsistencies in its law.²³ Fur- thermore, ICL does not have a comprehensive criminal code. These issues pervade the topic of forced marriage, complicating a general discussion of the crime. With these challenges in mind, the author guides the reader by discussing forced marriage from the perspective of the past, the present and the future, while critically assessing the evolution of the criminalization of forced marriage.

19 O'Sullivan (2011) p. 272.

20 Werle and Jessberger (2014) p. 56.

21 Statute for the International Court of Justice (ICJ).

22 Rome Statute of the International Criminal Court (hereinafter, Rome Statute).

23 Cryer et al. (2014) p. 590.

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2 Forced marriage in international case law

2.1 Introductory remarks

The types of forced marriages that this thesis will focus upon occur in armed conflicts, and are not to be confused with arranged marriages which occur mainly in peacetime.²⁴ An arranged marriage can be defined as “a marriage planned and agreed by the families or guardians of the couple concerned”.²⁵ The involvement and consent of parents or other family members in selecting and approving are paramount in arranged marriages, and these marriages are nor- mally entered into during peacetime.²⁶ In the following cases of forced marriage, the spouses did not necessarily enter into a legal marriage. Instead, the perpetrators used force or coercion to impose a marital conjugation. The discussion uses the term “women” which include both adults and minors. Moreover, the author acknowledges that men can also be forced into marriages, as occurred particularly in Cambodia during the Khmer Rouge regime. However, the author nevertheless chooses to focus mainly upon women. Apart from the Khmer Rouge cases, no other reports of men as victims of forced marriage have appeared in international criminal trials; thus, it appears that male victims of forced marriage are the exception rather than the rule.

The Rome Statute²⁷ was the first statute to include a comprehensive codification of sexual and gender-based crimes as crimes against humanity. Crimes against humanity are certain acts directed against the civilian population, as part of a widespread or systematic attack.²⁸ It has been argued that crimes against humanity are “as old as humanity itself”;²⁹ however, they were only first criminalized after World War II in the Nuremberg Charter.³⁰ Many of the sexual and gender-based crimes that are listed in the Rome Statute were first recognized and developed in the jurisprudence from the International Criminal Tribunals for Rwanda (ICTR)

24 Prosecution Expert Bangura in Prosecutor v Brima et al. p. 9.

25 http://www.oxforddictionaries.com/definition/english/arranged-marriage (last accessed 7 November 2016).

26 Prosecution Expert Bangura in Prosecutor v Brima et al. p. 12.

27 Rome Statute Article 7(1)(g).

28 For example Rome Statute Article 7(1).

29 Cryer et al. (2014) p. 229.

30 Article 6(c) in the Nuremberg Charter. Werle and Jessberger (2014) p. 328.

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and the former Yugoslavia (ICTY) respectively.³¹ However, forced marriage as a distinct, separate crime against humanity has neither been codified in the Rome Statute nor in any of the other international criminal tribunals’ statutes.

Despite the lack of recognition in these statutes, forced marriage has been, or is being, dealt with in a handful of international cases. Legal history was made in 2008 when the Special Court for Sierra Leone (SCSL) Appeals Chamber delivered a ground-breaking judgment, wherein the act of forced marriage as an ‘inhumane act’ of crime against humanity was explored and recognized for the first time.³² The residual clause ‘other inhumane acts’ in Article 2(i) of the SCSL Statute serves the purpose of criminalizing acts of similar character and gravity as the already explicitly listed crimes against humanity in Article 2(a)-(h).³³ The Ap- peals Chamber held that forced marriage is a distinct and unique crime, of the same gravity as other crimes against humanity.³⁴ This finding was supported in the second case litigated before the SCSL, namely the RUF trial.³⁵ In recent years, indictments containing charges of forced marriage as an ‘other inhumane act’ have been brought before both the Extraordinary Chambers for the Courts of Cambodia (ECCC)³⁶ and the International Criminal Court (ICC).³⁷

This Part seeks to provide a legal analysis of forced marriage in international case law. Chris- tensen argues that forced marriage “will likely not gain significant traction as a crime against humanity without clarification of what elements constitute the crime”.³⁸ In answering the pre- viously outlined research question – has international jurisprudence come to a point of recognition of forced marriage as a separate crime against humanity – subsequent parts of the thesis will ascertain how forced marriage hitherto has been recognized and assess the extent to

31 For example, in Prosecutor v. Akayesu, TJ paras. 732-734 the ICTR found that rape constituted an act of genocide. Similarly, Prosecutor v. Kunarac et al, was the first case which highlighted the criminal responsibility for sexual slavery; TJ para. 542.

32 Prosecutor v. Brima et al. AJ. Oosterveld (2011a) p. 52.

33 Prosecutor v. Brima et al. AJ para. 183.

34 Ibid. para. 200. Haenen (2013) p. 896.

35 Prosecutor v Sesay et al.

36 Prosecutor v. Chea et al.

37 Prosecutor v. Ongwen.

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which there is agreement with respect to the elements which have been found to constitute forced marriage. In short; is there a judicial precedent set in international criminal law?

It is important to bear in mind that every international tribunal operates within its own special environment, and that the Statute of each tribunal includes a set of rules applicable only to that particular tribunal.³⁹ A short introduction of each tribunal will therefore be presented, together with the context in which the crimes were committed.

2.2 The Special Court for Sierra Leone

During the civil war in Sierra Leone in the 1990s, which lasted for more than a decade, rebel groups such as the Revolutionary United Front (RUF) and Armed Forces Revolutionary Council (ARFC), amongst other parties, committed mass atrocities, particularly directed against the civilian population.⁴⁰ Women were notably affected by the armed conflict, which was, inter alia, characterized by sexual and gender-based crimes.⁴¹ It is estimated that up to 257 000 women were victims of sexual violence.⁴²

Forced marriage was a widespread practice in Sierra Leone,⁴³ whereby women were abducted from their homes and forcibly married to individual rebels as “bush wives”. These marriages were not legal in a formal sense, meaning they were not entered into in accordance with domestic or international law. In many cases, women were married to the perpetrators who had killed their family members, before subsequently being abducted.⁴⁴ The prosecution expert witness in the AFRC case, Mrs. Bangura, gave an account of the daily life of a “bush wife”;

“A ‘bush wife’ carried her ‘husband’s’ possessions as they moved from place to place. She also cooked for him, washed his clothes and satisfied him sexually whenever and however he wanted (…). She could be used, and then disposed of as and when her ‘husband’ wanted”.⁴⁵

39 Cassese (2008) p. 14.

40 da Silva (2011) p. 232-233.

41 Prosecution Expert Bangura in Prosecutor v. Brima et al. p. 8.

42 Physicians for Human Rights (2002) p. 3-4.

43 https://www.hrw.org/news/2001/02/26/sexual-violence-within-sierra-leone-conflict (last accessed 7 Novem- ber 2016).

44 Haenen (2013) p. 897.

45 Prosecution Expert Bangura in Prosecutor v. Brima et al. p. 14.

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In addition to experiencing sexual slavery, including rape, torture and forced labour, the women faced other horrific acts such as forced pregnancy, forced abortion and being drugged.⁴⁶ In sum, the perpetrators exercised total control over the women’s autonomy, including their movement and sexuality.

The hybrid tribunal, SCSL, was established in an agreement between the UN and the Gov- ernment of Sierra Leone,⁴⁷ with the purpose of prosecuting the most responsible persons for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996.⁴⁸ The Statute,⁴⁹ together with its Rules of Procedure and Evidence,⁵⁰ are the governing documents of the Court. The Court has ratione materiae jurisdiction over certain international crimes⁵¹ and certain crimes under Sierra Le- onean law.⁵² Two cases at the SCSL considered the crime of forced marriage, the AFRC case⁵³ and the RUF case,⁵⁴ and these cases will be discussed in the following.

2.2.1 The AFRC case

The case Prosecutor v. Brima et al., commonly referred to as the AFRC case, was the first international case ever to recognize and develop the crime of forced marriage. Forced marriage was initially not included in the indictment, but after pressure from civil society,⁵⁵ the Prosecutor sought, and was granted leave, to amend the indictment⁵⁶ to include the count of forced marriage as an ‘other inhumane act’ (new Count 8) cf. Article 2(i) of the Statute. The accused were also charged with other sexual crimes, including rape, sexual slavery and other forms of sexual violence.

46 Supra note 14.

47 Agreement Between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone.

48 Article 1(1) of the Statute of the Special Court for Sierra Leone.

49 Statute of the Special Court for Sierra Leone.

50 SCSL Rules of Procedure and Evidence.

51 Crimes against humanity, cf. Article 2, war crimes, cf. Article 3, international humanitarian law, cf. Article 4.

52 Cf. Article 5.

53 Prosecutor v. Brima et al.

54 Prosecutor v. Sesay et al.

55 Toy-Cronin (2010) p. 564.

56 Prosecutor v. Brima et al. Decision on Prosecution request for Leave to Amend the Indictment.

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With respect to Count 8, the Trial Chamber found by a majority⁵⁷ that there is “no lacuna in the law which would necessitate a separate crime of ‘forced marriage’ as an ‘other inhumane act’”.⁵⁸ The finding was based on the reasoning that forced marriage is “completely subsumed by the crime of sexual slavery”.⁵⁹ The Trial Chamber held that Article 2(i) was a residual clause intended to cover “a broad range of underlying acts not explicitly enumerated in Arti- cle 2(a) through (h) of the Statute” (the other crimes against humanity), and therefore Article 2(i) must “logically be restrictedly interpreted as applying only to acts of non-sexual nature”.⁶⁰ This was contrary to the Prosecutor’s submission that forced marriage was “distinct from sexual acts, because they force a person into the appearance of marriage by threat or other coercion”,⁶¹ and that forced marriage as an inhumane act could include sexual violence or slavery but involved other distinct elements as well.⁶² The majority of the Trial Chamber found the evidence presented by the Prosecution insufficient to prove the non-sexual elements of forced marriage.⁶³ Furthermore, the Trial Chamber found that the use of the term “wife”

amounted to the perpetrator’s exercise of ownership over the women, rather than an expres- sion of a conjugal relationship.⁶⁴

In her separate concurring opinion, Judge Sebutinde fully agreed with the Trial Chamber with regard to the classification of forced marriage as a “sexual or gender crime akin to rape, sexual slavery or sexual violence”⁶⁵ but went further by differentiating between arranged marriage in peacetime and forced marriage in the context of the conflict. Sebutinde shared the view of expert witness Bangura, that a “clear distinction should be drawn between traditional or reli- gious marital unions involving minors (early or arranged marriages), during times of peace;

and the forceful abduction and holding in captivity of women and girls (‘bush wives’) against their will”.⁶⁶ In contrast, Judge Doherty, in her partly dissenting opinion regarding Count 8,

57 Prosecutor v. Brima et al. TJ para. 714, Judge Doherty dissenting.

58 Ibid. para. 713.

59 Ibid.

60 Ibid. para. 697.

61 Ibid. para. 701.

62 Ibid.

63 Ibid. para. 710.

64 Ibid. para. 711.

65 Prosecutor v. Brima et al. TJ Separate concurring opinion of Judge Sebutinde, para. 1 and 4. Emphasis as shown in original.

66 Ibid. para. 12.

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distinguishes the phenomenon of forced marriage from sexual slavery. She regards forced marriage as primarily a non-sexual crime. She focused on the conjugal element of the crime, stating that the central element of forced marriage is “the imposition, by threat or physical force arising from the perpetrator’s words or other conduct, of a forced conjugal association by the perpetrators over the victim”.⁶⁷

In sum, the majority of the Trial Chamber was not satisfied that the evidentiary submission by the Prosecutor could prove the elements of a non-sexual crime of forced marriage. Even if sufficient evidence would have been brought to prove the non-sexual elements, the Chamber found that “it would not have been of similar gravity to the acts referred to in Article 2(a) to (h) of the Statute”.⁶⁸ Count 8 was found to be redundant and was therefore dismissed.

Eight months later, the finding was overturned by the Appeals Chamber.⁶⁹ It held that the Tri- al Chamber had interpreted the residual provision ‘other inhumane act’ too restrictively and had therefore “erred in law”.⁷⁰ Furthermore, the Appeals Chamber stated that “the Prosecution may have misled the Trial Chamber”⁷¹ by putting Count 8 (forced marriage) together with Counts 6, 7 and 9⁷² under the heading ‘Sexual Violence’. The Appeals Chamber found that

“no tribunal could reasonably have found that forced marriage was subsumed under the crime against humanity of sexual slavery”.⁷³ Although forced marriage shares some elements with sexual slavery (for example non-consensual sex and the deprivation of liberty), there are distinguishing elements, such as being forced into a conjugal association and the exclusive nature of the relationship, which render it “not predominantly a sexual crime”.⁷⁴ This considera- tion accorded with the dissenting view of Judge Doherty.

The Appeals Chamber held that “forced marriage describes a situation in which the perpetrator through his words or conduct, or those of someone for whose actions he is responsible,

67 Prosecutor v. Brima et al. TJ Partly dissenting opinion of Judge Doherty, para. 53.

68 Prosecutor v. Brima et al. TJ para. 710.

69 Prosecutor v. Brima et al. AJ.

70 Ibid. para. 185.

71 Ibid. para. 181.

72 Rape, sexual slavery and outrages upon personal dignity, respectively.

73 Prosecutor v. Brima et al. AJ para. 195.

74 Ibid. para. 195.

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compels a person by force, threat of force, or coercion to serve as a conjugal partner resulting in severe suffering, or physical, mental or psychological injury to the victim”.⁷⁵ This definition highlights the conjugal act, and forceful context of, forced marriage.

Even though the Appeals Chamber overturned the dismissal of Count 8, and found the accused responsible for forced marriage, they did not enter new convictions.⁷⁶ The reasoning was that the Chamber was “convinced that society’s disapproval of the forceful abduction and the use of women and girls as forced conjugal partners (…) is adequately reflected” by finding such criminal conduct as an ‘other inhumane act’.⁷⁷

2.2.2 The RUF case

The second case was Prosecutor v. Sesay et al. (hereinafter called the RUF case) where the three persons accused were each charged with eight counts of crimes against humanity.⁷⁸ Count 8, concerned forced marriage as ‘other inhumane act’ under Article 2(i) of the Stat- ute.⁷⁹ The RUF was a rebel group formed in the 1980s with the aim to overthrow the sitting government in Sierra Leone.⁸⁰ The RUF rebels operated similarly to the AFRC rebels; they were known for targeting women and subjecting them to, inter alia, rape, sexual slavery and forced marriage.⁸¹

Both the Trial Chamber and the Appeals Chamber confirmed and convicted the accused for forced marriage as a crime against humanity under the residual clause ‘inhumane acts’. Al- though the Chambers in the RUF case did not set out its own definition of forced marriage, the Trial Chamber elaborated on the elements of the crime of forced marriage provided for in the AFRC case throughout the judgment. The RUF Appeals Chamber endorsed the definition set out in the AFRC Appeals judgment.⁸² Furthermore, the judges were satisfied with the de-

75 Ibid. para. 196.

76 Ibid. para. 202.

77 Ibid.

78 Prosecutor v. Sesay et al. TJ para. 6.

79 Ibid. para 164.

80 Ibid. para 9.

81 Oosterveld (2011a) p. 50.

82 Prosecutor v. Sesay et al. AJ para. 735 with reference to AFRC Appeals Judgment, para. 196.

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scription of the elements that would constitute the commission of the crime of forced marriage, specified by the Prosecutor, namely that;

“an accused, by force, threat of force, or coercion, or by taking advantage of coercive circumstances, causes one or more persons to serve as a conjugal partner, and the perpetrator’s acts are knowingly a part of a widespread or systematic attack against a civilian population and amount to the infliction of great suffering, or serious injury to body or to mental or physical health sufficiently similar in gravity to the enumerated crimes against humanity, then consent is impossible and therefore is not a relevant con- sideration”.⁸³

As seen from the description of the elements constituting the crime of forced marriage, the main contribution of the RUF trial was to evaluate forced marriage in the context of other inhumane acts. When discussing the harm of the imposed conjugal association, the Trial Chamber pointed out that “lasting social stigma (…) hampers their recovery and reintegration into society”.⁸⁴ Thus, the Chamber emphasized the broader sociological impact of forced marriage. Another interesting and new contribution was the finding of the Trial Chamber that “the use of term ‘wife’ by the rebels was deliberate and strategic, with the aim of enslaving and psychologically manipulating the women and with the purpose of treating them like posses- sion”.⁸⁵ Thus, the objective of forcing these women into marriage was not only for them to provide sexual and household services, but also as a means of controlling the population through a strategic system.⁸⁶

In sum, the AFRC Appeals judgment was the first ever to consider forced marriage as a separate crime, that of an ‘other inhumane act’. The main contribution of the judgment was its definition of the crime, with the emphasis on the conjugal element. The legal significance of the RUF judgments lies in their development of the elements of forced marriage and their connection to the ideology of the RUF rebels.⁸⁷ Also significant is the fact that the judgments in the RUF case did not at any point diverge from the AFRC Appeals Decision.

83 Ibid. para. 736.

84 Ibid. para. 1296.

85 Ibid. para. 1466.

86 Oosterveld (2011a) p. 66.

87 Ibid. p. 52.

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2.3 The Extraordinary Chambers for the Courts of Cambodia

The Khmer Rouge regime was a communist governmental reform which lasted between 1975 and 1979. It is estimated that 1.7 million people died during the period.⁸⁸ Under the regime of the Khmer Rouge, it has been claimed that forced marriage (committed against both men and women) was a widespread practice, allegedly as part of the Khmer’s political reform.⁸⁹ The rationale behind the practice of forced marriages was to exert control over the civilian population in matters pertaining to spousal selection, births and sexual relations as a means of ensur- ing their adherence to the Communist Party of Kampuchea’s (CPK).⁹⁰

The Extraordinary Chambers for the Courts of Cambodia (otherwise known as the Khmer Rouge Tribunal, or the ECCC) was created after the Cambodian government reached out to the UN and entered into an agreement to establish the Court.⁹¹ The Court has personal jurisdiction over those most responsible for national and international crimes, including crimes against humanity, committed during the Khmer Rouge regime in the Democratic Kampuchea (now Cambodia).⁹²

Four cases have been brought before the Court. To date, only Case 001 has been concluded, while Cases 002/003/004 are ongoing.⁹³ Case 002 was separated into two parts (002/1 and 2) in 2011, in order to make the case more manageable.⁹⁴ Part one of the case was concluded in 2014,⁹⁵ with the accused being found guilty of enforced movement of people as a crime against humanity and sentenced to life imprisonment.⁹⁶ Part two of the case includes a charge of forced marriage as a crime against humanity.

88 https://www.eccc.gov.kh/en/about-eccc/introduction (last accessed 7 November 2016).

89 Prosecutor v. Chea et al. Closing Order paras. 845 and 858.

90 Ibid. para. 847.

91 ECCC Agreement.

92 Article 1 of the ECCC law.

93 Case 002 is under proceedings, while Cases 003 and 004 are under investigation.

94 https://www.eccc.gov.kh/en/articles/severance-proceedings-ordered-case-002 (last accessed 7 November 2016).

95 The judgement was appealed. The Appeals judgement is expected to be delivered 23 November this year, https://www.eccc.gov.kh/en/articles/appeal-judgement-case-00201-scheduled-23-november (last accessed 7 November 2016). The author therefore does not address this further, as the appeals judgement will be re- leased after the date of submission.

96 The accused are the same in the two parts of Case 002, however Sary died in 2013 and Thirith died two years later, thus only two defendants on are on trial are Chea and Samphan.

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The accused in the case against Chea, Sary, Samphan, Thirith (Case 002/2) are charged with committing crimes against humanity, genocide and grave breaches of the Geneva Conven- tions of 1949 as senior leaders during the Khmer Rouge regime.⁹⁷ The Trial Chamber began to hear evidence on the charge of forced marriage on 23 August this year. Forced marriage and rape within the context of forced marriage were charged as ‘other inhumane acts’ under Article 5 of the ECCC Law.⁹⁸ Forced marriage was originally not included in the indictment but, after the Civil Party Lawyers filed several Supplementary Investigative Requests,⁹⁹ an Order on Request for Investigative Action Concerning Forced Marriage and Forced Sexual Relations was eventually accepted.¹⁰⁰ Forced marriage and rape within the context of forced marriage were the only sexual and gender-based crimes included in the indictment.

The Closing Order (indictment), submitted by the Co-Investigating Judges¹⁰¹ after the investigation, in accordance with Internal Rule 55, undertook a factual and judicial investigation.

The Closing Order provides for “a description of the material facts and their legal characteri- sation by the Co-Investigating Judges, including the relevant criminal provisions and the nature of the criminal responsibility”.¹⁰² Although the Trial Chamber is currently hearing evidence on forced marriage in the ongoing trial, Elander points out that “much work on their representation as crimes is done in the Closing Order” and argues that “the trial and subsequent judgment are to some extent bound by the Closing Order”.¹⁰³

The factual findings in the Closing Order show that both men and women were forced into marriage under the Khmer regime.¹⁰⁴ The assignments of spouses were usually made by the

97 Prosecutor v. Chea et al. Closing Order paras. 6-9.

98 Ibid. paras. 1430 and 1442.

99 See for example Co-Lawyers for the Civil Parties’ Fourth Investigative Request.

100 Accepted 18 December 2009.

101 In contrary to other internationalized tribunals, the investigations at the ECCC are conducted by the two Co- Investigating Judges, based on the investigations by the Prosecutor. The findings made under the investigations are presented in the Closing Order. The following information from the Closing Order is based upon statements from 664 civil parties to the case, cf. the Closing Order para. 861.

102 ECCC Internal Rules 67(2).

103 Elander (2016) p. 170.

104 Prosecutor v. Chea et al. Closing Order para. 842.

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Angkar,¹⁰⁵ on the basis of social class and political standing, although there were local varia- tions to the approach.¹⁰⁶ The prospective spouses in most cases did not know each other and had no say in the selection.¹⁰⁷ Mass ceremonies were held where groups of couples, up to a hundred, were wedded at the same time.¹⁰⁸

Pol Pot, the leader of the Khmer Rouge, stated that these marriages were entered on a volun- tary basis; however, the factual findings show that this was not always the case.¹⁰⁹ Witnesses have testified that their lives were at stake - if they didn’t obey they could face violence, death, or being sent to the work camps.¹¹⁰ After the marriage had been entered into, the couples were usually ordered to have a short “honeymoon” with the goal to conceive, before separating and returning to their designated workplaces. Some witnesses have testified that they had sex with their spouse due to fear of not complying with the policies under the totalitarian rule. Others have testified to being raped by their husbands, on the Angkar’s orders.¹¹¹ The Angkar were reported to be monitoring the consummation, and some spouses were impris- oned for refusing sexual intercourse with their spouse.¹¹²

The legal findings on forced marriage, made by the Co-Investigating Judges, were split in two sections; “rape in the context of forced marriage” and “other inhumane acts through forced marriage”.¹¹³ The judges found that “the constitutive elements of the crime against humanity of other inhumane acts through acts of forced marriage have been established nationwide”.¹¹⁴

105 Means “‘Organization’ and described the Party as a whole but also the leaders at different levels”, cf. the Closing Order para. 18.

106 Prosecutor v. Chea et al. Closing Order paras. 846-847. Ye (2011) p. 469.

107 Prosecutor v. Chea et al. Closing Order para. 849. However, there were some reports of persons whose wishes were taken into account when choosing a spouse, paras. 851 and 852.

108 Ibid. para. 844.

109 Ibid. para. 845.

110 Ibid. paras. 849 and 850.

111 Ye (2011) p. 469.

112 Prosecutor v. Chea et al. Closing Order para. 858.

113 Ibid. paras. 1430 and 1442.

114 Ibid. para. 1442.

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With respect to the first section, it was found that the legal element of rape, i.e. consummation of marriage, in this context was “one of the crimes used by the CPK leaders to implement the common purpose”.¹¹⁵

When discussing the actus reus of forced marriage as an inhumane act in the second section, the Judges focused on the fact that the victims were “forced to enter into conjugal relationships in coercive circumstances”, causing “serious physical or mental suffering or injury or a serious attack on human dignity of a degree of gravity comparable to that of other crimes against humanity”.¹¹⁶ The judges did not, however, set out an explicit definition of forced marriage. In the earlier Order on Request for Investigative Action Concerning Forced Mar- riage and Forced Sexual Relations, the same judges stated that it was not necessary to “conduct a final analysis of the elements of forced marriage” at that stage, finding instead that

“due notice of the constitutive aspects of forced marriage can be derived from the AFRC Ap- peals Judgment of the Special Court of Sierra Leone”.¹¹⁷ It is notable that this reference to earlier remarks on the elements of forced marriage was not repeated in the Closing Order.

Forced marriage in the context of Cambodia differs in several ways from the above- mentioned cases in Sierra Leone;¹¹⁸ both men and women were affected and it was the Khmer Rouge regime itself that coerced men and women into, and subsequently enforced, forced marriages. It has therefore been argued that “Cambodia reveals how forced marriage can be expansively interpreted and how the crime can apply in different circumstances”.¹¹⁹ It is expected that evidentiary hearings on forced marriage will conclude later this year, with a judgment to follow by the end of 2017.

115 Ibid. paras. 1430 and 1432. Interestingly, the judges considered the CPK policy to prevent rape, and “despite the fact that this policy did not manage to prevent rape, it cannot be considered that rape was one of the crime used by the CPK leaders to implement the common purpose”, but this was not the case in the context for forced marriage, cf. para. 1429.

116 Ibid. para. 1443.

117 Order on Request for Investigative Actions Concerning Forced Marriages and Forced Sexual Relations, paras. 9 and 10.

118 O'Brien (2016) p. 390.

119 Nguyen (2014) p. 18.

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The ICC is the first and only permanent international criminal court. The legal basis for the Court’s establishment and jurisdiction is the Rome Statute. The ICC investigates and prose- cutes individuals for breaches of the most serious crimes of international character; genocide, crimes against humanity and war crimes.¹²⁰ In 2016, two thirds of the states in the world, i.e.

124, have ratified the Statute and are State Parties.¹²¹

A total of 23 cases have been brought before the ICC, and three judgments have been rendered; in Katanga and Lubanga,¹²² and Bemba.¹²³ Currently, ten situations are subject to investigation by the ICC, where a charge has been issued, or formal investigation has started.

One of these situations is Uganda.

2.4.2 The situation in Uganda and the Ongwen case

In December 2003, the President of Uganda referred the situation in North Uganda to the ICC, and investigations opened in July 2004.¹²⁴ Five senior leaders of the rebel group Lord’s Re- sistance Army (LRA), including Ongwen, were accused of committing war crimes and crimes against humanity in relation to the armed conflict in North Uganda between 2002 and 2005.

The conflict was fought between the LRA and the government of Uganda with the LRA at- tempting to overthrow the government.¹²⁵ Ongwen’s case was separated from the case against the other LRA leaders in 2015.¹²⁶

During the conflict, civilians were systematically targeted by the LRA, causing grave suffering.¹²⁷ An estimated number of 60 000 Ugandan children and youth were kidnapped by the rebels, and some of these were forced into marriages with members of the LRA.¹²⁸ The practice of forced marriage in Uganda is strikingly similar to the situation in Sierra Leone, in that

120 Rome Statute Article 6, 7 and 8, respectively.

121 South Africa, Burundi and Gambia are in the process of withdrawing, but are as of now still State Parties.

https://www.amnesty.org/en/latest/news/2016/10/gambia-withdrawal-from-icc-a-drastic-blow-to-countless- victims-globally/ (last accessed 7 November 2016).

122 Final judgements have been rendered in Prosecutor v. Katanga and Prosecutor v. Lubanga.

123 Prosecutor v. Bemba, currently on Appeal.

124 Prosecutor v. Ongwen Decision on the confirmation of charges para. 4.

125 Ibid. para. 3.

126 https://www.icc-cpi.int/Pages/item.aspx?name=pr1088 (last accessed 7 November 2016).

128 Carlson and Mazurana (2008) p. 4.

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women were abducted from their homes and distributed to individual rebels as wives. Again, these marriages were not formally legal, that is to say they were not recognized by international or Ugandan law.¹²⁹ The married women were subject to multiple crimes; they were, inter alia, sexually abused, forced to cook, clean and carry supplies between camps, in addi- tion to often being impregnated.¹³⁰ Some of the women abductees were also forced to fight.¹³¹ At the confirmation of charges stage, the Pre-Trial Chamber must assess whether there is sufficient evidence – presented by the Prosecutor – to establish substantial grounds to believe that the accused committed the crimes of which he is charged cf. Article 61(7) of the Rome Statute. The confirmation of charges hearing against Ongwen was concluded on 23 March 2016. All 70 charges, including forced marriage as an ‘other inhumane act’, were unanimous- ly confirmed.¹³²

The main question for the Chamber, with respect to the charge of forced marriage under Arti- cle 7(1)(k) of the Rome Statute, was whether Ongwen’s conduct, his forcing women to serve as conjugal partners, constituted “an other inhumane act of character similar to the acts set out in article 7(1)(a) to (j) intentionally causing great suffering, or serious injury to body or to mental or to physical health”.¹³³ In the Decision on the Confirmation of Charges, the Pre-Trial Chamber referred to the cases at the SCSL and pointed out that the facts in the cases were similar to, and the legal question the same as in, the Ongwen case.¹³⁴ After referring to the legal requirements of forced marriage set out in the SCSL Appeals Judgments in RUF (para.

736), AFRC (para. 196) and Closing Order in Case 002/2 (para. 1443),¹³⁵ the Pre-Trial Cham- ber stated that forced marriage “may, in the abstract, qualify as ‘other inhumane act’ under Article 7 of the Statute”.¹³⁶

129 Ibid. p. 5.

130 Ibid. p. 15.

131 Ibid. p. 4.

133 Ibid. para. 88.

134 Ibid. para. 89.

135 Ibid. paras. 89 and 90.

136 Ibid. para. 91.

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The defence argued that forced marriage was not included within the category of other inhumane acts, because it was already subsumed by the crime sexual slavery.¹³⁷ This argument was dismissed by the judges, who highlighted the differences, in the Ugandan context, between forced marriage and sexual slavery “in terms of conduct, ensuing harm, and protected interests”.¹³⁸ The judges acknowledged that some acts are common to both crimes, for example sexual abuse, but noted that “the forced performance of domestic duties” is exclusive to forced marriages. Importantly, the forced performance of domestic duties alone is not sufficient to establish the crime of forced marriage. The central element is the imposition of a

“marriage”, which the Pre-Trial Chamber defined as “the imposition, regardless of the will of the victim, of duties that are associated with marriage, as well as of the social status of the perpetrator’s ‘wife’”.¹³⁹ Thus, it is the de facto situation, i.e. the “exclusivity of this forced conjugal union” that is determinative, and sets it apart from sexual slavery.¹⁴⁰ Furthermore, the judges emphasized that victims of forced marriage had their right both to freely enter into marriage and establish a family violated, noting the additional harm that this caused the victims; these were rights, according to the judges, that should be protected.¹⁴¹

Judge de Brichambaut issued a separate opinion, criticizing the decision for its shortcomings with regard to both the rationale and evidentiary analysis.¹⁴² He pointed out that, although the Pre-Trial Chamber’s reasoning was limited to “what is necessary”, it “must still set out, clear- ly and precisely, definitions of each of the crimes charged against the accused”, and connect it to the evidence.¹⁴³ Interestingly, de Brichambaut listed the crimes he considered to be lacking a definition,¹⁴⁴ and forced marriage was not amongst them.¹⁴⁵ The reason for this was not ex- plained; perhaps he was satisfied with the discussion on the elements on forced marriage set out by the Pre-Trial Chamber.

137 Prosecutor v. Ongwen Defense brief paras. 128-130.

140 Ibid. para. 93.

141 Ibid. para. 94.

142 Prosecutor v. Ongwen Decision on the confirmation of charges Separate opinion of de Brichambaut para. 2.

143 Ibid. para. 10.

144 Inter alia, murder, torture, other inhumane acts, enslavement as crimes against humanity, cf. para. 18.

145 Prosecutor v. Ongwen Decision on the confirmation of charges Separate opinion of de Brichambaut para.

18.

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The Chamber concluded that, based on the evidence presented, forced marriage constituted

“the crime of an other inhumane act” and differed from the other crimes charged, including sexual slavery.¹⁴⁶ The Trial is scheduled to begin 6 December 2016.¹⁴⁷

2.5 Is the crime of forced marriage recognized in case law?

The following Part - 2.5.1 - will compare the definitions and elements of forced marriage set forth in Part 2.2-2.4, which are the only cases where forced marriage has been successfully litigated, or where forced marriage is included in the indictment as a separate crime. Part 2.5.2 discusses whether there is agreement in case law, and includes cases and situations where forced marriages have been prevalent in armed conflicts, but not specifically indicted.

2.5.1 Definitions and elements of the crime

It is evident that the elements of forced marriage, as defined in the above discussed cases, vary considerably. The AFRC case highlights the different approaches on defining forced marriage. Although the AFRC Trial Chamber, with the exception of dissenting Judge Doherty, did not set out an explicit definition of forced marriage, it nevertheless discussed the crime.

While the Trial Chamber¹⁴⁸ stated that forced marriage is subsumed under the crime of sexual slavery, and that it is predominantly a sexual crime, the Appeals Chamber¹⁴⁹ took a different approach of confirming it as an ‘other inhumane act’. The Appeals Chamber’s definition, and the definition set out by dissenting Judge Doherty, emphasizes the main element to be that of a forced conjugal association. The fact that two Chambers of the same Tribunal and in the same case cannot agree upon the underlying nature of the crime, highlights the difficulties in handling a crime of such complexity.

The Trial and Appeals Chamber in the RUF case relied,¹⁵⁰ more or less, on the definition put forth by the Appeals Chamber in the AFRC case.¹⁵¹ The problem with the RUF Trial judgment is that the discussion of the elements of forced marriage is scattered around the judgment, making it difficult to fully understand how the judges define forced marriage. However,

146 Ibid. para. 95.

147 https://www.icc-cpi.int/Pages/item.aspx?name=pr1216 (last accessed 7 November 2016).

148 Prosecutor v. Brima et al. TJ.

149 Prosecutor v. Brima et al. AJ.

150 Prosecutor v. Sesay et al. TJ and AJ.

151 An explicit reference to the definition in the AFRC AJ was made in Prosecutor v. Sesay et al. AJ, para. 735.

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the Chambers seem to follow the approach in the AFRC Appeal judgment by relying on the conjugal act, rather than the sexual elements, of the crime. This is supported by the statement that the actus reus of ‘forced marriage’ is “the imposition of a forced conjugal association”.¹⁵² Furthermore, the Trial Chamber portrays the distinguishing element, separating forced marriage from sexual slavery, as “a forced conjugal association based on exclusivity between the perpetrator and the victim”.¹⁵³ Sexual slavery lacks this forced conjugal association.

The same approach was taken in the Ongwen case by the ICC Pre-Trial Chamber,¹⁵⁴ which concluded that the act of “forcing another person to serve as a conjugal partner” constituted an

‘other inhumane act’.¹⁵⁵ Again, the emphasis was laid on the conjugal aspect, rather than the sexual. However, the Ongwen case is only at the confirmation stage, thus, it will be up to the Trial Chamber to decide whether to follow the same line of argumentation as the Pre-Trial Chamber when defining the act of forced marriage.

In contrast, although the Co-Investigative Judges in the Closing Order of ECCC Case 002/2¹⁵⁶ did not define forced marriage, Elander argues that it seems like the judges are not following the approach taken in the AFRC Appeals Judgment. The reason she gives in support of this assertion is that the count of rape in the context of forced marriage and the count of forced marriage per se “focus on the ‘consummation of marriage’ – in other words: sex. Or, rather, rape.”¹⁵⁷ The author would argue otherwise: It seems that the judges are following the SCSL practice of relying on conjugal relationships as the main element, by categorizing it as an ‘inhumane act’. The Closing Order puts the main focus on the practices common to forced marriages –the ceremonies and coercive circumstances - highlighting how they diverged from traditional marriage practices in Cambodia. The sexual elements of the act received less atten- tion under the discussion of forced marriage as a separate crime.

In sum, it appears that a shift has taken place – from defining forced marriage as a predominantly sexual crime (sexual slavery), to focusing on the conjugal relationship and therefore

154 Prosecutor v. Ongwen Decision on the confirmation of charges.

156 Prosecutor v. Chea et al. Closing Order.

157 Elander (2016) p. 173.

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categorizing the crime as an ‘other inhumane act’. Three elements of forced marriage can be drawn from the jurisprudence, based on the definition in the AFRC Appeals judgment: (i) force, threat of force or coercion; (ii) a conjugal association; and (iii) severe suffering, or mental or psychological injury to the victim.¹⁵⁸

Although progress has been made to clarify the elements of the crime of forced marriage, there are still many fundamental issues that need clarification. For example, the definition in the AFRC Appeals judgment has been criticized for being “vague”,¹⁵⁹ “fraught with ambigui- ty”¹⁶⁰ and “failing to adequately address the non-sexual elements of forced marriage”.¹⁶¹ Oosterveld has, moreover, questioned whether “a definition of ‘forced conjugal association’

actually enhances international criminal law’s understanding of the crime”.¹⁶²

Eboe-Osuji goes even further and suggests that the Prosecutor and Appeals Chamber in the AFRC case made up the crime of forced marriage, especially with regard to “the very defini- tion of forced marriage”,¹⁶³ without using a single legal authority or “source outside of their own authority”.¹⁶⁴ Furthermore, and common to all the cases, is that they lack pervasive arguments as to whether forced marriage is a separate crime, and what its elements are. These critics, with which the author agrees, can result in lack of certainty surrounding the crime of forced marriage.

2.5.2 A recognized crime?

A group of legal scholars have asserted that, with the charges confirmed by the Pre-Trial Chamber in the Ongwen case,¹⁶⁵ “there is consensus in international criminal law on the charging and conviction of forced marriage as a crime against humanity of other inhumane acts”.¹⁶⁶ The following draws on examples from cases where elements of forced marriage have been prevalent in a conflict, but have not been indicted as a separate crime, and discuss

158 Scharf (2014) p. 211.

159 Gong-Gershowitz (2009) p. 55.

160 Ibid. p. 75.

161 Ibid. p. 60.

162 Oosterveld (2007) p. 134.

163 Eboe-Osuji (2012) p. 232.

164 Ibid. p. 233.

165 Prosecutor v. Ongwen Decision on the confirmation of charges.

166 Prosecutor v. Chea et al. Request for leave to submit Amicus Curiae brief on forced marriage para. 15.

Forced marriage as a crime against humanity